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The Philadelphia Inquirer today called for judicial selection reform, arguing that “The case for reforming the way Pennsylvania selects its judges keeps getting stronger.”  Citing PMC’s analysis of the fundraising and spending in the 2009 Supreme Court election, the editorial focuses on the poisonous role of money in judicial elections:

It’s the troubling influence of campaign fund-raising that continues to create the most concern about electing judges in head-to-head partisan contests.

Most Pennsylvanians say they suspect that justice is for sale because candidates for judgeships have to raise campaign funds. The big-spending 2009 Supreme Court election between Republican Joan Orie Melvin and Democrat Jack Panella did nothing to restore their fraying faith in an impartial judiciary.

The Inquirer urges action, and we hope the call is heeded:

The course for state policymakers is clear: Step in and reform judicial selection, or continue to preside over a system that erodes public confidence in justice as it’s dispensed in Pennsylvania.

In a letter to the Philadelphia Inquirer, PMC’s Shira Goodman argues that Merit Selection ends the money game that is so much a part of judicial elections.  Remember, much of the money that funds appellate court election campaigns comes from lawyers, law firms, businesses, unions and others with cases before the appellate courts.  In addition, the political parties often — like in this year’s Supreme Court race — spend big money to elect their favored candidates.

Merit selection eliminates all this spending and, most importantly, stops the flow of money from lawyers to the campaigns of judges likely to rule on their cases.

The letter also focused on the role of the public in a Merit Selection process, including: participation on the nominating commission; providing information about applicants for appellate court vacancies to the nominating commission, the Governor and the Senate during the application/evaluation, nomination and confirmation processes; and voting in retention elections to determine if judges should remain on the bench.

Critically, only the people of Pennsylvania can change the way we select appellate court judges:

Pennsylvania can change the way we select appellate judges, but only if the people vote to amend the constitution. It is time to let Pennsylvanians make this decision.

In a letter to the Philadelphia Inquirer, Charlotte Glauser argues that “Pennsylvanian’s judicial system is broken.”  According to Glauser:

As long as we continue the partisan election of judges, we deserve the poor quality of our judiciary. The time is long past to get rid of this system. Both parties are guilty of prolonging this travesty.

Glauser’s solution: “We need merit selection of judges, especially at the state appeals level.” We certainly agree with that.

All of a sudden, other people seem to be doing our work for us, that is alerting the public to the evils of money in judicial elections.  Supreme Court candidates are challenging each other about campaign contributions, and the media is all over the story.  (Check out this story on NPR’s WHYY and articles in the Pittsburgh Post-Gazette, Pittsburgh Tribune-Review, The Philadelphia Inquirer/AP, Capitolwire (subscription required), and Allentown’s The Morning Call). So, let’s talk about money.

It’s a given that to run a statewide campaign for the appellate courts, you need money.  There are sixty-seven counties in Pennsylvania, and candidates try to reach most, if not all of them.  This requires travel, television ads, radio spots, lawn signs and a good staff.  That all costs money.  Where’s the money coming from? Generally, the big givers to judicial campaigns are those who frequently litigate in the state court system: lawyers, law firms, organized groups of lawyers or bar associations, unions, and businesses.

The trouble is, these folks and entities will later appear before the judges their money helped to elect.  Who finds this troubling?  The public does — the regular folks who sometimes find themselves in court and who don’t give to judicial campaigns.  These folks are sitting in courtrooms worried that their opponents or their opponents’ lawyers have contributed to the judge’s election campaign.  This should be the last thing people in court have to worry about.  But when you elect judges, this is part of the package.

The abiding image for our courts is the statue of Justice blindfolded, signifying that judges are not swayed by personal bias, popular opinion, political expediency, or the identity of the parties.  Electing judges undermines that image.  Instead, the public imagines a judge with eyes wide open, pockets bulging with campaign cash, and knowledge of where the cash came from.

The candidates for Supreme Court are not helping to repair this image. They are fighting about who received more money from which donors. Judge Orie Melvin charges that Judge Panella received more than  $1,000,000 from the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers.  Judge Panella retorts that Judge Orie Melvin accepted $125,000 from the same PAC and has received large donations from Republican PACs as well.

One million dollars is a lot of money, but $125,000 is nothing to sneeze at, as my nine year old son has pointed out.  Anyone coming in to court opposing someone who contributed to this PAC might justifiably be concerned about either Judge Panella or Judge Orie Melvin.  It’s not the size of the donation, it’s the fact of the donation.

The candidates’ dispute acknowledges that campaign money creates unfavorable perceptions and leads the public to believe justice is for sale.  Their debate about money is not helping to ease the public’s mind, but rather is confirming fears that campaign cash does indeed matter long after the election is over and the judge is sitting in the courtroom.

Enough is enough. It’s time to get judges out of the fundraising business and to put the blindfold back on.  Merit Selection is the answer.

Attorney Peter Vaira’s op-ed in the Philadelphia Inquirer details recent troubles plaguing Pennsylvania’s court system and offers some thoughts on causation:

Is this Huey Long’s Louisiana? What is behind these events? Part of the answer is Pennsylvania’s county government system. Each county has its own courts, its own court rules, and often its own unwritten procedures. Nor does the state attorney general have any control over county prosecutors.

Another problem is that all judges run for election. This creates a system of subtle (and often not-so-subtle) IOUs, especially at the county-court level.

All of this can foster localized criminal justice and make the courts insiders’ forums.

Vaira’s tag that the judicial election system is “a system of ious” echoes increasing public concern about the influence campaign contributions have on judges.  Increasingly, the public has come to believe that we have a system in which justice may be “for sale” to campaign contributors.

This is simply an unacceptable situation.  To restore public confidence in our courts and judiciary, we must get judges out of the fundraising business.

Last week, Pennsylvania Common Cause released a report analyzing political donations and campaign contributions by the gaming industry in Pennsylvania. The report reveals “that the gaming industry gave $4.4 million in campaign contributions to political candidates and committees in the state from 2001-08.”

Among the candidates who received contributions were some current and former members of the Pennsylvania Supreme Court. This particular fact prompted strong comments from Philadelphia Inquirer reader John R. Attanasio:

But how “surprising” was it that two justices made the list? Did they run for office “advocating slots gaming in the commonwealth”? They didn’t publicly. Or were they supported by casino money because the contributors hoped to influence their future actions on the bench?

Whatever their motivations, we know one thing for sure: [one of those justices] participated in the court’s ruling that struck down a statutory ban on campaign contributions from gambling interests. Even if that case was correctly decided, his being involved in it certainly doesn’t look good for him, or our legal system.

There are two lessons here: First, big political contributions can create at least the appearance of a corrupt influence on public policy. Second, the idea of judges’ running for election, and raising money from special interests to do so, is absurd.

Mr. Attanasio makes a good point: electing judges makes no sense.

In an op-ed in the Philadelphia Inquirer, PMC Board Chair Bob Heim explains the impact of the Caperton decision and outlines a solution to the poisonous effect of money on judicial elections:

So what does [Caperton] mean for those of us who don’t have $50 million at stake? A lot.

There’s no question that, regardless of the amount of money involved, if one side of a case contributed to a judge’s campaign, the other side will worry about it.

Some years ago, I was told of a lawyer who was sitting with a client in court, waiting for a newly assigned judge to hear his case. When the judge appeared, the lawyer whispered to his client that he was concerned, because the opposing lawyer was on the judge’s campaign committee and had contributed to the campaign. After a pause, the client whispered back, “So why didn’t you contribute?”

This story, cynical as it may seem, reflects the very real concerns and perceptions created when litigants and lawyers have contributed to the election campaigns of judges who preside over their cases.

Heim argues: “There is a simple solution to the problem of money in judicial elections: Get judges out of the fund-raising business by changing the way we choose them.”  His proposed solution is Merit Selection:

Merit selection would focus on the qualifications of judicial candidates. It would eliminate the unimportant but often decisive factors of the current system, such as ballot position, a “good name,” where one lives, and talent for fund-raising and campaigning. Because merit selection eliminates the need for candidates to win political-party support or raise large sums of money, it would open pathways to the bench for qualified men and women of all races, backgrounds, and experiences.

The op-ed concludes with some thoughts about why Pennsylvania has not yet stopped electing appellate court judges. Heim believes that legislatures who might be swayed on the topic haven’t heard enough from their constituents about this important issue.  But surveys consistently show the public is concerned about money and judges.  Heim urges Pennsylvanians “Let your legislators know you care.”

In a letter to the Philadelphia Inquirer, Philadelphia Bar Association Chancellor Sayde Ladov reaffirms the Philadelphia Bar Association’s long-standing support for Merit Selection.  Noting the Caperton decision and the recent Merit Selection legislation introduced into the Pennsylvania legislature, Chancellor Ladov explains:

With the U.S. Supreme Court bringing more attention to this issue, we must work to ensure that candidates seeking a seat on our state benches are the most qualified, not the most financially or politically connected.

We whole-heartedly agree and are pleased that the Philadelphia Bar Association stands with us in calling for Merit Selection as the solution.

Two major Pennsylvania newspapers today featured editorials inspired by the Caperton decision, and both argued for replacing judicial elections with Merit Selection.  The Philadelphia Inquirer offers this stinging assessment of judicial elections:

The river of money that sloshes through campaigns to elect judges in Pennsylvania and Philadelphia has long raised questions about the quality of justice and one’s ability to remain impartial – especially when a big donor is party to a case. . . .

The whole process stinks and does little to bolster the quality of judges, while undermining public confidence in the judiciary.

That’s why the Supreme Court decision offers the best justification yet to reform the way Pennsylvanians select judges.

The Pittsburgh Post-Gazette’s editorial is equally critical of judicial elections:

The final note of depression is that this case flows from a system that makes no real sense and shows no sign of changing — the election of judges. As long as money is exchanged to support judicial candidates, the potential for bias will be there, no matter how little or extraordinary the sum.

This is a key point: even in cases involving parties or attorneys who made less eye-popping contributions to the judge’s campaign, the potential exists for bias or at least the perception that the playing field is not level.  No one should be worrying in court whether the opposing party or counsel contributed to the judge’s campaign.  The solution is clear: Merit Selection gets judges out of the fundraising business.

Not surprisingly, there’s been a lot written about the United States Supreme Court’s decision this week in Caperton. The Philadelphia Inquirer has written several articles focused on the decision, and its impact on Pennsylvania, including the views of those who believe Merit Selection is the answer.  As Rob Beyer, a former Pennsylvania judge, explained:

‘The Supreme Court’s Caperton decision is a narrow ruling concerning an extreme situation, but it highlights the fundamental inconsistency between selecting judges in partisan elections and the principle, required by constitutional due process, that judges not only must be impartial, but must maintain an appearance of impartiality.’

Beyer explained that he was hopeful that the decision would generate support for the adoption of Merit Selection in Pennsylvania.

The New York Times’ report on the decision can be found here; today’s article focuses on the probable impact of the decision.  The Times’ editorial on the decision concludes:

Chief Justice Roberts is fond of likening a judge’s role to that of a baseball umpire. It is hard to imagine that professional baseball or its fans would trust the fairness of an umpire who accepted $3 million from one of the teams.

Our friends at Gavel Grab offer extensive coverage of the decision as well as important analysis.